Parliament: Waging War (Constitution Committee Report)

My Lords, it is valuable for a parliamentary Select Committee to examine the constitutional implications of public Bills and tokeep the operation of the constitution under review. The committee’s report on Parliament’s role and responsibility for waging war, introduced so clearlyby its chairman, my noble friend Lord Holme of Cheltenham, contains a valuable analysis of the origins, nature and evolution of the royal prerogative and of the arguments for and against increasing parliamentary involvement in its operation. Perhaps I may say that my noble friend has a long and distinguished record in promoting necessary constitutional reforms, democracy and the ruleof law. Other noble Lords speaking in the debate are much better equipped to do so than a National Service officer who served during the inglorious Suez fiasco. I shall therefore deal largely with wider matters. I have a broad interest in the subject matter of this report because of my Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill to place prerogative powers, including war powers as one example,under Parliament rather than the sovereign. The committee’s report noted my evidence in which I submitted that a key concern is one of constitutional principle: that Parliament should be the source of government power, not the Crown. The key questionI suggested is this: should it be Parliament thatis sovereign and to whom the Executive are constitutionally accountable, or should it be the monarch? I submitted that it is anomalous for the Crown to be able to exercise public powers without parliamentary authority on the basis of medieval notions of kingship and other Crown Ministers. I should correct something my noble friend said at the outset: I did not and do not suggest the abolition of prerogative powers. I submit that Parliament, rather than the sovereign, should be their source and that the exercise of those powers should ensure parliamentary oversight and accountability. It is a profound misunderstanding to suppose that I and other likeminded reformers seek to abolish the prerogative. As I say, we seek to place it underproper parliamentary control, as happens in other democracies. The report noted considerable support for this view from other witnesses, and the committee reached this important conclusion, part of which my noble friend quoted. It stated that, "““the exercise of the Royal prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament’s ability to challenge the executive must be protected and strengthened. There is a needto set out more precisely the extent of the Government’s deployment powers, and the role Parliament can—and should—play in their exercise””." Everyone who has spoken so far has agreed with that conclusion. The committee’s conclusion is important and welcome, although I wish the committee hadadopted wider terms of reference, like the Public Administration Committee of the other place, to examine parliamentary control of prerogative powers generally, not only the war powers. The treaty-making powers and the powers in relation to the Civil Service are of greater day-to-day importance than the happily rare use of the power to wage war and make peace. My other regret is that the committee decided to reject the evidence from witnesses including myself—and, by implication, the recommendation of the Commons Public Administration Committee—about the need for a legislative scheme, preferring instead the weaker option of a constitutional convention. The committee explained that it saw, "““no merit in legislative architecture which creates the possibility of judicial review of Government decisions over matters of democratic executive responsibility. In addition, the need to provide for ‘emergency’ exceptions would create loopholes that could be readily exploited by a future administration with ambitions less benign than those to which we are accustomed””." I beg to differ, and I was glad to hear the speech of the right reverend Prelate the Bishop of Ripon and Leeds on that matter. A statute along the lines of my Private Member’s Bill—which was not analysed by the committee—would not give rise to the possibility of judicial review of government decisions over matters of democratic executive responsibility, and I cannot understand how the committee could have reached that conclusion. If my Bill did that, it would be quite wrong; the last thing I sought to do was produce a Bill that fell into the trap of undue legalism. Like the guarantees of judicial independence and the rule of law contained in the Constitutional Reform Act, for which the noble and learned Lord the Lord Chancellor should take credit, my Bill or similar Bills would create a statutory duty, but one that would be unlikely to give rise to judicial review proceedings unless the Government were to act in breach of the core obligation to consult Parliament. The second objection made by the committee, that the need to provide for emergency situations would create loopholes that could readily be accepted by future Governments, is also, with respect, unpersuasive. It would be much more difficult for a future Government to flout or misuse a statutory exception for emergencies than a mere soft constitutional convention of the kind proposed by the committee. The constitutional convention proposed by the committee contained an emergency exception, as did my Private Member’s Bill, the Bill drafted by the Public Administration Committee and several other Private Members’ Bills introduced in the other place. While I disagree with the committee over the form of reform in this area, I do not disagree over the basic substance. As the committee concluded, the essential elements must be that Government should seek parliamentary approval for military action; provide Parliament with details of any proposed action, including its objectives, legal basis, likely duration, size, and so on; be able, in circumstances of emergency, to take action before consulting Parliament, provided that they come back to Parliament to give an account as soon as possible; and keep Parliament informed of the progress of any military action. Those seem elementary principles in any modern working democracy. There is fundamental agreement on the contentof this approach from my party, the Public Administration Committee, Members in the other place and Her Majesty’s Opposition. The Chancellor of the Exchequer, the right honourable Gordon Brown MP, has, as has been said, indicated his support for reform. In an interview with Andrew Marr on ““Sunday AM”” in January this year, he said that perhaps we should legitimise the role of Parliament in questions of peace and war in the constitution itself. He continued: "““I cannot conceive of a situation other than an extreme emergency where Parliament would not wish to, and should not, have a role to play in this””." The committee cannot be criticised for being radical in its approach. On the contrary, the dismissive way in which the Government have responded to this exceedingly modest proposal is characterised by this modest committee as ““inadequate””. The noble and learned Lord, Lord Mayhew of Twysden, expressed the matter in more robust terms with which I entirely agree. I find the way in which the Government have failed to respond objectionable. As the committee rightly points out, a cross-party consensus appears to be emerging that the current arrangements are unsustainable. The Government continue to rejoice in a situation under current arrangements in which power is delightful and absolute power is absolutely delightful. Let us hope that a future Administration place the prerogatives under Parliament so that executive powers are exercised subject to Parliament rather than the monarch. The Chancellor of the Exchequer and the Leader of the Opposition agree with my party about the need for reform by statute. It is a misfortune that on this issue, the noble and learned Lord the Lord Chancellor opposes sensible constitutional reform. He does not normally remind me of another Lord Chancellor, Lord Halsbury, but on this occasion I am afraid that he does. Let us hope that glasnost comes soon.